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Taking on Amendment Critics, Part XIV: David Crocker

David P. Crocker has a fistful of credentials from the U.K. and the U.S., including a JD from the University of Maine. He was a clerk on the Maine Supreme Court and claims to have a good deal of experience with American and British law as well as extensive international experience and contacts. This opinion piece of his appeared on TheMaineWire.com, an arm of the corporate-friendly think tank, Maine Heritage Policy Center (MHPC), a few weeks before both chambers of the Maine legislature voted overwhelmingly in favor of a resolution calling for a constitutional amendment to overturn the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission. It was an extremely heavy-handed attempt to influence the outcome of those votes and it failed. Despite its failure, what can only be described as a vicious attack on the people’s right of self-determination, and two worthy organizations in the process, is worth a second look.

Mr. Crocker goes to great lengths to paint with a broad brush that elevates private institutions over the people that allow them to come into being and it’s easy to see the direction his piece is going to take after reading the first sentence.

“In response to the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, several leftist groups have been hard at work in Maine seeking support for a constitutional amendment that would severely restrict the rights of people who choose to work through incorporated entities.”

Justice Rehnquist

First, while liberals and progressives have been the most visible and vocal critics of the Citizens United decision, they are far from alone. From former Chief Justice William Rehnquist to current Senator John McCain, principled conservatives (aka, those not on a corporate payroll or bankrolled by corporate think tanks) have taken precisely the same position in the matters of legal personhood and spending money as an expression of speech. Second, the People’s Rights Amendment (PRA), the We The People Amendment (WTP) and the Human Rights Amendment (HRA) on this site would actually have the effect of expanding individual rights, exactly the opposite of what Mr. Crocker describes as an attempt to “severely restrict the rights of people.” So how does he justify his position? By imagining that each person who works for, patronizes, invests in or is otherwise forced to interact with corporations in their daily lives only ever does so out of his or her own personal choice.

Sure, you can opt out of dealing with corporations if you don’t need a telephone, or electricity or transportation. If you can afford to eat nothing but organically grown food from family farms, or simply don’t need to eat at all, you can avoid corporate influence altogether. Even during campaign season, if you simply avoid all radio and television, stay off the internet completely, and cover your eyes and plug your ears every time you leave your home, you can easily shut out the corporate propaganda that swirls around you from every direction. Not a problem.

Our children are making a personal choice when they’re forced to watch corporate propaganda in return for “free” news and information programming pumped directly into the classroom. When education budgets are slashed to provide more corporate welfare, and that welfare is then used to infiltrate our public schools, it’s all just a series of personal, individual choices at work. Nothing to see here. Pay no attention to that man behind the curtain.

Even if you are one of those small business owners who chose to incorporate your business, or an actor who chose to incorporate your personal brand, doing so did not grant you, as an owner, any new constitutional rights. It granted rights, under current case law, to the piece of paper your corporate charter is printed on. Mr. Crocker, as a lawyer, knows fully well the difference between natural and artificial personhood and, therefore, knows his opening remark is hyperbole at best, if not an attempt at outright deception.

Justice Stevens

This is part and parcel of the same “glittering generality” that Justice John Paul Stevens described in his 90-page dissent in the Citizens United ruling. It’s all about “voices” and “disadvantaged minorities” and the freedom we all have to “choose” to be ruled by corporate wealth. Nobody of sound mind agrees that transnational corporations are “disadvantaged minorities.” Nobody of sound mind believes that a corporation or other artificial entity, an instrument of government on a piece of paper, is indistinguishable from an individual living human being. People who take the position that multimillion dollar media campaigns are identical to a single person shouting at pedestrians on the street just happen to be taking the side of the people who have the most money. We report, you decide.

“While leftist groups vociferously denounced both the court and the ruling, Citizens United did nothing more than reestablish the law as it existed for more than a century.”

If Mr. Crocker is describing the doctrine of legal personhood established in the Santa Clara ruling in 1886, it’s a precedent that didn’t stop the Supreme Court from ruling that limits on campaign contributions and spending were, indeed, constitutional in the case of Austin v. Michigan Chamber of Commerce in 1990. Austin is specifically cited and overruled in the Citizens United case. It’s rare for a Supreme Court to overrule itself within a single generation but Citizens United broke the mold. 1990 is not “more than a century” ago. If, however, Mr. Crocker is describing the doctrine of money as speech, it was the cases of Buckley v. Valeo and First National Bank of Boston v. Bellotti, the subject of Justice Rehnquist’s famous dissent (linked above), that codified money as speech. Those cases are from the 1970s. Again, not “more than a century” ago.

His language is also designed to obfuscate the truth that it’s bad case law that we’re dealing with here, not legislation or other constitutional amendments. A person that probably spends a lot of time decrying judicial activism over the decisions he disagrees with cannot bring himself to acknowledge that it was the courts that created the law out of whole cloth, not the legislature or the citizenry. He probably doesn’t dare openly claim that the XIV Amendment was intended to include corporations when it was adopted in 1868, because it wasn’t. The XIV Amendment is aimed at granting citizenship and equal protection under the law to former slaves, abolishing the three-fifths rule and setting a criteria for dealing with former Confederate politicians in the wake of the Civil War. It’s a kind of omnibus amendment wedged in the middle of the three post-war “reconstruction amendments” — XIII, XIV, and XV.

Even if Mr. Crocker’s point were true — which it isn’t — slavery was constitutional for more than seven decades when it was finally abolished, women’s right to vote failed to pass constitutional muster for 131 years before we corrected that unethical doctrine, and we’re still working on full rights for women and minorities, like the LGBT community. So his statement is not only wrong; it’s meaningless in the context of constitutional rights. There’s nothing wrong with acknowledging that, in order to reestablish the primacy of the rights of individuals over their governments and their governments’ creations, we must curtail the court-ordered constitutional rights that incorporated institutions have accumulated over many decades.

Owning people and compelling them into servitude was a constitutional right for a powerful minority of the population when Abraham Lincoln was elected President. In order to abolish slavery, that “right” had to be taken away. If some human beings can own other human beings, the owned human beings have no rights. Granting those people constitutional rights abolishes the first group’s right to own them. That is, in fact, taking a constitutional right away from a group that previously had that right. We should not merely accept the premise that a “right,” once it exists, becomes permanent by some divine decree. Some rights, like the right to own other people, should be abolished.

Today, a powerful minority uses the “rights” granted to corporations through the artifice of legal personhood and money as speech to control the American political process, the American economy and the future of America’s children. Dealing with would-be tyrants, including tyrants that arise from the unelected, unaccountable private sector, is part of what the Article V provision for amending the Constitution is all about. The federal government didn’t own a single person when slavery was finally abolished. Abolishing slavery was aimed at private sector tyrants as much as the state governments that aided and abetted them.

This isn’t rocket science. It’s actually pretty simple when you think about it logically and don’t allow pedigreed flamethrowers to confuse the issue with glittering generalities.

“Under the PRA, government could conduct warrantless searches of any property not owned by a “natural person” and seize such property without compensation in violation of the Fifth Amendment. Government could even deny First Amendment rights, including free speech and religious liberties, to any incorporated entity, including unions, churches, news organizations, and even political parties themselves.”

This passage exhibits at total lack of constitutional scholarship. First off, the operative section of the Fifth Amendment Mr. Crocker cites actually refers to “private property,” which, by definition, includes property owned by private institutions, not just property owned by persons. The “takings clause” would remain untouched in its entirety if the PRA, WTP or HRA were to be adopted. Second, until the activist Supreme Court got involved, starting with Hale v. Henkel in 1906 (a direct result of Santa Clara), businesses from slaughterhouses to coal mines had always been subject to surprise inspections by the people’s representatives in government and had no claim to Fourth Amendment rights of any kind. Nor should they, since we grant them the privilege of limited liability, a privilege no individual can assert on his or her own behalf. They get extra privileges and we demand extra scrutiny for that privilege. Not too hard a bargain, really. And this doesn’t mean we get to send inspectors into the owner’s private home without a warrant. It just means we get to send inspectors into the owner’s business operation without a warrant, as a means of regulating commerce. Requiring probable cause for each instance effectively defeats the purpose of surprise inspections (which is why fire departments do not need bench warrants to inspect fire suppression systems in large buildings).

Mr. Crocker’s points about the First Amendment are even more preposterous. The power to regulate spending already exists under the commerce clause — a section Mr. Crocker, as a member of a pro-corporate think tank, would very much like to do away with, no doubt. Having embraced the illogical and unethical doctrine of spending money as an expression of speech, Mr. Crocker wants his readers to assume that preventing a corporation, a union, or even a church from spending money on campaign advertising is the equivalent of suppressing speech. It isn’t. And the idea that the freedoms of religion and press would suddenly vanish is even more absurd. All First Amendment rights apply to individuals only, not collectives or institutions. Churchgoers, journalists, Occupiers and Tea Partiers alike are all expressing their individual freedoms of religion, press and assembly, respectively. But the pieces of paper that give legal life to their congregations, news outlets and non-profit groups do not have, deserve or require those same rights to protect each of those individuals from unwarranted, unconstitutional government intrusion. Your church is safe, until it starts running a meth lab or a dog-fighting ring. Then it gets raided by law enforcement (after obtaining a warrant, of course!). Freedom of religion does not grant immunity from all laws, nor does it shield a church from scrutiny by the larger community.

Taking away corporate personhood and money as speech would empower the Congress’ to once again enforce truth in advertising, truth in news reporting and truth in political campaigning without having any impact on free speech whatsoever. Because the owners, members, officers, employees and beneficiaries of any institution are free to speak, write or publish under their own auspices any time they like. It’s when they propagate speech using money that belongs to a chartered, privileged institution that the spending itself (not the speech) becomes subject to regulation not just under the commerce clause but under Congress’ Constitutional power to regulate the manner of elections (Article I, Section 4), which includes the people’s interest in obtaining truthful information from a variety of sources for the purpose of making not just political, but policy decisions that directly impact our lives.

Four states and a handful of cities have passed legislation banning billboards outright or just “off-site” billboards (those that advertise a business in a different physical location) from going up into an already cluttered skyline. Mr. Crocker would call that suppression of speech and there have been challenges to such laws on exactly those First Amendment grounds, most recently in Metro Lights, L.L.C. v. City of Los Angeles. But erecting a billboard is a form of commerce that can be regulated and Metro Lights lost the case because the people have a legitimate right to regulate commercial speech, provided the regulations are applied in a non-capricious way that successfully advances the legitimate interest of the people. And protecting a natural resource like a mountain view in Vermont, or improving traffic safety by reducing commercial stimulus like the skyline clutter in San Diego, represent perfect examples of the people’s right to use the legitimate and broad public interest to trump the selfish and narrow business interests of privileged entities.

Union members, corporate officers, priests and even journalists can say whatever they want as individuals. It’s when they use the union, corporate, church or newspaper treasury to say it to more people than they have within earshot that we, the people, get to step in and see how it’s being done and regulate the actual spending, provided the regulation is applied fairly and advances the legitimate interests of the people, like an assurance that information presented as factual represents a best effort at ascertaining the truth. But cases like Metro Lights won’t be the norm for long at the rate that illegitimate corporate constitutional rights are expanding. And Mr. Crocker isn’t done running blocker for the corporate elite. Having already been 100% wrong about Free Speech for People’s PRA, he then goes on to use the most paranoid, fear-mongering language to assail it and Move to Amend’s We The People proposal.

“These amendments are bone-chilling for any liberty-loving person. They go way, way beyond overruling Citizens United, which only dealt with limited political contributions by corporate entities. Instead, the proponents – either through ignorance or outright malice – have seized Citizens United as a pretext to assault all the Constitution’s protections.

The simple ignorance displayed is appalling enough: in the modern world, people choose to order their affairs through corporate entities large and small. Overwhelmingly, “corporations” are small groups of people – or one person – organizing for some for-profit or non-profit purpose. And the First Amendment rightly protects a variety of expressive political acts, like burning a flag – or contributing money.”

Assault all the Constitution’s protections? Ignorance? Outright malice? Even the most rudimentary English language skills should be capable of seeing through that sophistry. One hesitates to even acknowledge the existence of sycophants like Mr. Crocker if not for the fact that his retread of Cato Institute talking points represents the official position of a group with some influence in the Pine Tree state and has been shared in emails and on social media more than 300 times (which is a lot in a state with the population of Maine). The “simple ignorance” on display is Mr. Crocker’s. And, in fact, it’s far beyond simple ignorance. It’s a deliberate manipulation of the history of the nation and the meaning of the First Amendment.

Can you hear us now?

The only thing Mr. Crocker gets right is that the First Amendment protects a variety of expressive acts. His implication that it protects all expressive acts, however, is flat wrong. If spending money is a form of expression, then so is throwing a brick through a window. But Mr. Crocker would be among the first to describe brick-throwing as an illegitimate form of expression. What he wants his readers to assume is that spending money is completely harmless, not like throwing a brick at all. But when that money is used to saturate the marketplace of ideas with lies and propaganda about a policy or an industry or one candidate or another — irrespective of partisan considerations, since both sides do it — then Mr. Crocker is endorsing the same kind of damage to our political bodies that throwing a brick can be to our physical bodies. It doesn’t matter if a Democrat or a Republican throws the brick, the damage is the same.

This is the height of self-serving corporate-speak and the clearest indication that Mr. Crocker’s hysterical rant is nothing more than a paid advertisement for corporate oligarchs who’s only interest is in controlling the American political system to the greatest extent possible, up to and including the complete overthrow of the people’s sovereignty in favor of government controlled by corporate elites. If that supposition is wrong, let Mr. Crocker support his wild assertions with some actual facts next time he chooses to inflict his ignorance and deception on his readers.

The British Gold Sovereign

People have rights. WE are sovereign. Governments have powers that are granted by the people. We brought this government into existence. We make it work for us. That’s the proper power structure of a democratic republic. And all artificial entities that are neither individual human beings nor government agencies of any kind are endowed with privileges as defined by the representatives that we, the people, empowered to define those privileges. The distinctive difference between rights, powers and privileges is that rights are unalienable (except by constitutional amendment) while powers and privileges are definable and revokable in law. Rights belong to individuals. Powers and privileges are extensions of those individual rights that we grant to institutions in the name of logistics and efficiency in government, business and any other form of human pursuit.

“Freedom” and “liberty” are not the same thing. Freedom is a life free from coercion, like not being a slave or getting conscripted into the British navy. Liberty is the way we treat each other in a free country. One person’s rights end where another person’s rights begin. One person can “take the liberty” of speaking on behalf of another person, like a spouse or business partner making an executive decision solo. But raiding someone’s refrigerator without asking or deliberately misrepresenting history, or the law, or any other knowable truth, is what we describe as “taking liberties.” For instance, people who say corporations have always been considered natural people are “taking liberties” with American history and the U.S. Constitution. When we say “taking freedom,” we usually mean incarceration (or servitude). “Taking liberties” is different and a clear indication of the difference between “freedom” and “liberty.”

This isn’t a free-for-all out here. And it’s not a corporate remodel of European feudalism. It’s a federal republic, or it’s supposed to be. Our nation was founded on freedom with the Declaration of Independence. Our form of government was founded on liberty with the U.S. Constitution. One threw off tyranny. The other established the rules we would all live by. Sometimes those rules need to be changed in order to prevent one group from asserting an unethical and unjustifiable domination over the rest us. That’s how we aim to achieve a “more perfect union.” Whether that’s achievable or not, that’s the goal. We should be wary of those who wrap privileges in the false trappings of freedom in an effort to diminish our sovereign liberties.